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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Health Ombudsman v Marlin  QCAT 142
DIRECTOR OF PROCEEDINGS ON BEHALF OF the health ombudsman
terry elizabeth marlin
Occupational regulation matters
17 April 2020
On the papers
Judicial Member D J McGill SC, assisted by Ms C Ashcroft, Ms Hopkins and Mr S Lewis.
PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – NURSES – DISCIPLINARY PROCEEDINGS – where the respondent is a enrolled nurse – where the referral alleges professional misconduct – where the referral alleges stealing as a servant and unlawful possession of restricted drugs – whether such conduct should warrant a significant sanction by reprimand
Health Ombudsman Act 2013, s 103, s 104, s 107
Health Practitioner Regulation National Law of Queensland (2009), s 5
Health Ombudsman v Jamieson  QCAT 172
Health Ombudsman v MacDonald  QCAT 473
Health Ombudsman v Riek  QCAT 173
Nursing and Midwifery Board of Australia v Tainton  QCAT 161
Psychology Board of Australia v GA  QCAT 409
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- This is a reference by the applicant of disciplinary proceedings against the respondent under the Health Ombudsman Act 2013, s 103(1)(a) and s 104. Under s 126 of that Act I constitute the Tribunal. I am sitting with assessors, Ms Hopkins, Ms Ashcroft and Mr Lewis, in accordance with the Act, s 126. Their function is to advise me in relation to questions of fact: s 127.
- The respondent was a registered health practitioner for the purposes of the Health Practitioner Regulation National Law of Queensland, being formerly an enrolled nurse. The applicant alleges that the respondent engaged in professional misconduct, or in the alternative, unprofessional conduct, in that while registered and practising as an enrolled nurse:
she stole a quantity of prescription medication and as a result was in unlawful possession of restricted drugs.
she failed to give the board written notice of the fact that she had been charged with offences punishable by 12 months imprisonment or more, as required by the National Law, s 130.
she failed to notify the board of the fact that she had been convicted of one offence punishable by 12 months imprisonment or more, as required by the National Law, s 130.
she failed to give the board written notice of the fact that her employment had been suspended and subsequently terminated, as required by the National Law, s 130.
- The parties have provided the Tribunal with an agreed statement of facts. The respondent, who has not been legally represented in these proceedings, provided a response to the referral and written submissions to the Tribunal and a reference. The hearing proceeded on the papers in accordance with the Queensland Civil and Administrative Tribunal Act 2009, s 32.
- The following facts are taken from the agreed statement of facts. The respondent was born in 1956 and is now 63. She was first registered as an enrolled nurse in 1998. Between 2010 and 2017 she worked part-time at BUPA Glenvale as an enrolled nurse. Between 4 August 2015 and 21 July 2016 she worked part-time at Blue Care Regional and Remote Services as an enrolled nurse. That position involved work at a nursing home, including handling prescription medication for residents.
- The procedure at Blue Care, her employer, was that, if medication for residents was left over, for example because a resident had died, it was to be returned to a pharmacy for disposal. The same applied to any medication maintained in stock at the nursing home which had passed its use-by date.
- On 21 June 2016 police searched the respondent’s residence and located a quantity of various prescription medications, in packaging indicating that they had been prescribed for other persons. As a result, she was unlawfully in possession of a number of restricted drugs. She claimed that she had obtained these with a view to donating them for veterinary use, and that her superior at the nursing home had allowed her to take them. The supervisor agreed that she had allowed the respondent to take some dressings and other medical supplies, which had passed their use-by dates and which would otherwise have been disposed of in the rubbish bin, so that they could be used by a vet, but denied she included any medication in this process.
- In an email letter to her employer of 15 July 2016 the respondent said that she removed discarded medication from the discarded medication container at the home. The respondent claimed to police during the search that she had intended to donate the medications to the RSPCA. It appears, however, that at some point she was told by someone at the RSPCA that they could not use the medication anyway. She kept the medications at her home, as she was unsure how to dispose of them safely.
- The respondent was subsequently charged by police with stealing as a servant, unlawful possession of restricted drugs and a third charge. The respondent failed to notify the Board of the fact that she had been so charged. On 13 December 2016 the respondent pleaded guilty in the Magistrates Court to the first two charges. The third charge was dropped. A fine was imposed, but the magistrate did not record a conviction. The respondent failed to notify the Board of the fact that she had been so convicted.
- Apart from this, the respondent’s employment was suspended by Blue Care on 22 June 2016 and terminated on 21 July 2016. The respondent failed to notify the board of the fact that her employment had been suspended and terminated.
- The respondent had a criminal history consisting of eight stealing offences between 1978 and 1986, for which she was fined, placed on probation, or released on a recognisance. In 2016 the sentencing magistrate regarded this history as irrelevant because of its age.
- I am conscious of the definition of “professional misconduct” in the National Law, s 5. I am also aware of the content of the Code of Professional Conduct for Nurses of the Nursing and Midwifery Board of Australia. The medication manual issued by Blue Care, the respondent’s employer, dealt with disposal of medications in part L, para 71:
Medications belonging to consumers who are deceased or any medications out of date, discontinued or damaged, should be returned to pharmacy for disposal.
- It is generally not appropriate for a nurse to take without permission medication belonging to her employer, either for her own use or to provide to another.
- The respondent, in an email letter to her employer of 15 July 2016, offered the explanation that she was a passionate supporter of the welfare of animals and this occurred in a context where she was just trying to help animals. I suppose it is possible that this medication was collected before she was told that the RSPCA would not accept such medication, but it strikes me as odd that she did not ask first before doing this. In any event, there is no evidence that any medication was taken after she was told the RSPCA would not accept it. Her motivation to help animals provides an explanation, rather than an excuse.
- What occurred here was that the respondent committed two criminal offences in circumstances which arose directly out of her employment as a nurse. The conduct involved a breach of her employer’s operating procedures for disposing of medications. One matter which is unclear is the extent of the offending and the period of time over which it occurred. Although the particulars of the charge of stealing as a servant alleged a period of between 31 December 2007 and 22 June 2016, the employer alleged was Blue Care and the respondent began to work at Blue Care only in August 2015. See the statement of facts, para 8.
- It is true that the transcript of the conversation during the police search contains a statement by the respondent that she had worked for Blue Care for eight years: p 6. But I can find no statement in the material as to the period over which these drugs had been collected. There was reference to one particular resident whose name was on a packet, who was said to have died earlier in 2016. There is no basis for the submission, in paragraph 28 of the applicant’s submissions, that the conduct extended over a period of approximately nine years disclosed in the material before me. The respondent denied that this occurred over a long period and claimed that she only heard about the idea of using expired medications for animals about six months before the June 2016 police raid. There is no material to contradict that.
- The applicant referred to three previous decisions of the Tribunal in cases where a nurse had stolen medication from an employer. In Health Ombudsman v MacDonald  QCAT 473, the nurse took seven boxes of a restricted drug, Seroquel, from her employer to give to her niece. Presumably the medication was usable. This occurred on one occasion. She had been placed on a bond after pleading guilty to unlawful possession of a restricted drug. She had not lost her job, though she had been subject to several conditions on her employment and she had subsequently resigned.
- The Tribunal found that this amounted to professional misconduct and suspended her registration for six months. The Honourable J.B. Thomas QC said at para 27:
The stealing of the prescription drugs from an employer by a nurse represents a significant breach of trust and abuse of position which is not tolerable within the profession. It is simply conduct that nurses must not engage in. Such conduct necessarily undermines the confidence that the public must retain in the profession.
- The proposed use of the medication was said to involve an element of irresponsibility. The Tribunal considered that she had shown insight into her offending behaviour.
- In Health Ombudsman v Jamieson  QCAT 172, a registered nurse took three boxes of antibiotics from her employer to treat an infection in an adult son. She had also failed to notify the board of the charge or of the conviction and had failed to disclose it when renewing her registration, which had subsequently lapsed.
- This was characterised as professional misconduct, although lying at the lower end of examples of this type of misconduct. The respondent was reprimanded. The Honourable J.B. Thomas QC said at para 27:
The stealing of medical supplies by a nurse from his or her place of employment is a serious act of misconduct. The present case, which involves the taking of some fairly familiar antibiotics, does not raise quite the same level of concern as the taking of illicit drugs, or patently dangerous, habit-forming drugs. The respondent’s motivation (a desire to assist her son) is less concerning than the common motivations of the taking of various forms of prohibited drugs. But it was still an act of plain theft,
- In Health Ombudsman v Riek  QCAT 173, a registered nurse had self-administered part of a dose of Fentanyl which had been prescribed for a patient, as a result of which he, the respondent, had lost consciousness. When this was discovered he had been suspended, had not worked as a nurse since and said he did not intend to seek registration in the future. There was evidence of psychiatric problems at the time. This was found to be clearly professional misconduct and the respondent was reprimanded. That seems to me to be a worse case, since it was a more significant medication and his action deprived a patient of the full prescribed dose, said to be an aggravating feature.
- In imposing a sanction, the health and safety of the public are paramount. Relevant considerations include both personal and general deterrence, the maintenance of professional standards and the maintenance of public confidence.
- The respondent is no longer registered and has not been for some time. Where there has been a de facto suspension of practice, that is a relevant factor when determining what order the Tribunal should make. See Psychology Board of Australia v GA  QCAT 409 at ; Nursing and Midwifery Board of Australia v Tainton  QCAT 161 at .
- The applicant conceded that the respondent had shown some insight and remorse into her conduct. She failed to report various events which ought to have been reported, but she had cooperated with the criminal proceedings and with the investigation by the applicant and in this proceeding. She knew these matters should have been reported, but was afraid of losing her remaining part-time job, which would have left her unable to pay her mortgage. She has, in her submissions to the Tribunal, acknowledged that this was wrong.
- Other aspects of the applicant’s submission were based on the proposition that this involved persistent long-term stealing from the workplace, which has not been shown. At most this occurred on a number of occasions over a period of six months, but there is no clear evidence that it was even as long or as often as that. It could have been only once. Further, what was taken was of no real value to the employer and the respondent had simply intercepted the process of discarding the medications. Accordingly, I regard it as a very minor example of such offending. The respondent has not stated that what she has done since she left nursing or what her intentions are. She may face difficulties in returning to nursing anyway.
- In view of the approach adopted in other cases, I consider it appropriate to characterise the behaviour as professional misconduct, but because it is a very minor example of this type of behaviour, and bearing in mind that the respondent has been out of nursing for over two years, I do not consider any suspension or disqualification appropriate.
- If she were still registered it would have been necessary to give careful consideration to imposing a short period of suspension, more because of the failure to report than of the stealing offence. The reporting requirement is a matter of some importance and considerations of general deterrence arise, especially where the failure to report was deliberate. But in view of the fact that the respondent has not been registered for over two years, no actual period of suspension would be appropriate in this case.
- Indeed, in the circumstances of this case I do not consider that even a reprimand is appropriate. The cases indicate that a reprimand is regarded as a significant sanction.
- I therefore make the following orders:
- The Tribunal decides that the respondent has behaved in a way that constituted professional misconduct, in that she engaged in conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training and experience;
- The parties bear their own costs of this proceeding.
- Published Case Name:
Director of Proceedings on Behalf of The Health Ombudsman v Terry Elizabeth Marlin
- Shortened Case Name:
Director of Proceedings on Behalf of The Health Ombudsman v Terry Elizabeth Marlin
 QCAT 142
Judicial Member D J McGill SC, Ms C Ashcroft, Ms Hopkins, Mr S Lewis
17 Apr 2020